The Bribery Act 2010 (the Act) was passed in the ‘wash up’ just before the election, and is expected to be brought into force in the autumn of this year. In summary there are four offences under the Act; an offence aimed at the payer of a bribe; an offence aimed at the recipient of a bribe; an offence of bribing a foreign public official and a corporate offence of failing to prevent bribery
‘Bribery’ occurs where a ‘financial or other advantage’ is given or received where this relates to ‘improper performance’ of a work related function. ‘Financial or other advantage’ is not defined but it seems clear that this involves non-cash gifts or other advantages.
Bribery of a foreign public official (FPO) occurs where the giver of the bribe intends to influence the FPO acting in his official capacity and intends to obtain or retain a business advantage. Facilitation payments which may be accepted practice in some jurisdictions are not necessarily caught by the Act, but the onus is on the person making the payment to ensure it is legitimate.
The new corporate offence of failing to prevent bribery has attracted a good deal of comment. This is a strict liability offence where a person ‘associated’ with the company (which can include consultants and agents) makes a bribe. A company might commit the offence – which carries a penalty of an unlimited fine – as a result of the actions of someone in another country over whom it has little control. Guidance will be given by the Government as to what ‘adequate procedures’ a company can put in place to give itself a defence.
Dutton Gregory partner, Jonathan Brown commented "the Act updates a regime which has been described as ‘archaic and inadequate’, but given the wide scope of the new legislation businesses should review their anti-corruption policies, procedures and training to avoid problems. The Serious Fraud Office has in recent times shown a willingness to ‘flex its muscles’ in the fight against corruption and the Act gives the SFO a new weapon in its armoury." Jonathan can be contacted on 02380 213 797 at any Dutton Gregory office.